Media and Communications Policy : Media Policy & First Amendment Foundation : The Media Institute : Free Speech, Media Regulation, Content Controls

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Sometime before the end of the world (which is to say any day now) it’s going to occur to our congressional leaders that the United States is facing some actual problems that might usefully be addressed.  In the meantime, though, the expectation is that they’ll just keep lobbing into the hopper things like the DISCLOSE Act.

As mentioned in an earlier blog, the legislation is formally titled the “Democracy Is Strengthened by Casting Light on Spending in Elections” Act.  And right there you have a measure of the collective wit of the bill’s sponsors.

Having cleared the House last month, the legislation is now in the Senate where its fate is unclear.  There’s talk of a Republican filibuster and of Democratic weariness.  But never mind the horse race aspects; we can trust our political reporters to handle that.  Of much greater importance are the myriad things that are wrong with the bill, divisible in parts between those that are just routinely outrageous, and those that are uncommonly so.

Among the former are the carve-outs exempting special interest groups like AARP and the NRA, and the transparently political rush to pass the legislation before the fall elections.  But the worst aspects of the bill are those that are also the most constitutionally infirm.

The bans on direct expenditures by government contractors and TARP recipients (with no similar limitations put on unions), and the speech-chilling threat of harassment inherent in some of the disclaimer and disclosure obligations, are sure to be challenged in court if the DISCLOSE Act is passed and signed into law.

It’s rarely a prudent thing to predict the outcome of any matter before the Supreme Court.  But considering what appears to be the support there for the notion that the speech at issue enjoys constitutional protection, it’s hard to see the Court upholding a bill that, for instance, restricts the First Amendment rights of organizations just because they happen to be government contractors.

In the main, The Media Institute’s opposition to McCain-Feingold has focused more on that legislation’s impact on “issue ads” rather than direct political contributions.  But given the mischief, not only inherent in but positively intended by the bill’s sponsors, the hope here is that, whether by filibuster or force majeure, the DISCLOSE Act will be put to rest in the Senate.

As they say in the ad, “Just Do It.”

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As some have noticed, a few pieces on this blogsite were originally published on the Huffington Post.  I started writing at HuffPo, in November of last year, because I wanted to occasionally write things that I felt were inappropriate for the Media Institute’s blogsite, and because I knew there were a few regulars there who, like me, were unhappy with the illiberalism of today’s “progressives.”

So it was that the first piece I wrote was a kind of introduction to all such called "The Orphan of the American Political System," in which I argued that it was a strange and unfortunate thing that liberals and libertarians were not allies.  (Because this piece had nothing to do with the media, and was overtly political, it wasn’t cross-posted, until now, on this website.)

Published in HuffPo’s “Politics” section, "Orphan" attracted a fair number of supporters and detractors — in other words pretty much what I expected, and all was well.  It wasn’t until I wrote blog number six, in February of this year, that the trouble began.

"The Intrinsic Menace in ‘Media Reform,’" published on Feb. 22, was a criticism of the “media reform” movement generally, and of the Knight Foundation, the FCC, and the group that calls itself Free Press specifically.  Among the subsequent commenters were Charles Firestone of the Aspen Institute, who challenged my characterization of the Knight Commission (a collaboration of Aspen and the Knight Foundation) and Timothy Karr of Free Press.

Karr’s comment was a classic.  In the finest tradition of political activists everywhere, Karr dealt not at all with the substantive points in my piece, but instead resorted to ad hominem attacks on me and The Media Institute, and faulted the editors of the Huffington Post for publishing it.

This last bit turned out to be a thing of some moment, about which more later, but Karr had more to say.  Lot’s more.  Just one day after the publication of "Intrinsic Menace," Karr wrote a piece for his own blog (Media Citizen) titled "When Corporate Shills Attack."  And three days after that he published, on the Huffington Post, a piece titled "Announcing the (Unofficial)Post Shill Watch," and cross-posted it the same day at Daily Kos.

The burden of both pieces, if that’s the word, was two-fold: HuffPo was allowing “corporate shills” (like me) to enter its progressive sanctum sanctorum, and it was not requiring said bloggers to state their organizations’ sources of support.

Had this been all that Karr said it wouldn’t have been an issue. Criticism by Free Press, after all, is considered by many, myself included, to be a thing of no importance, such is that organization’s tedious and transparent “mission.”  But it wasn’t all that he said.  In his Media Citizen blog, Karr also said that I personally had blocked publication of comments he had submitted to HuffPo — that in fact I had blocked his comments no less than five times.

And that was a lie.  Not only had I not done so, I wouldn’t have done for the simple reason that, as the head of one of the country’s leading First Amendment organizations, censorship is not my thing.

So this was unacceptable, and the only question was what to do about it.  After considering other approaches, I decided to ask HuffPo for their help.  As I put it in an e-mail to an associate editor there:

(Tim Karr) is saying on other sites that I have blocked him from commenting on my post at HuffPo.  He claims that he has been blocked five times.  I don’t know if he has in fact been blocked — he has a comment up there now, to which I responded — but I know, as you know, that I certainly didn’t block him.  Since, however, you are the only people who can prove my innocence of Karr’s charge, I hope you’ll find the time and a way to do so.

Thus began a frustrating exchange of notes that went on for eight days.  To my point that Karr had accused me of blocking his comments, the editor initially suggested that Karr was referring to someone else.  To Karr’s claim that I had blocked him five times, the editor suggested I write a piece for HuffPo with a link showing that one comment had been published.  And because Karr had published his accusation on his own blog (Media Citizen), well, there wasn’t much that HuffPo could do about that.

Finally, on March 5, I got a reply to a note I had sent the day before, in which I bluntly questioned why HuffPo was reluctant to tell Karr that I had not blocked his comments.  Much as I had expected, the editor’s note revealed that it was HuffPo itself that had blocked his comments, that they had done so because his comments were critical of HuffPo’s editors, and that Karr had been informed of this in a phone conversation.

I was relieved to hear this, and I thanked the editor and told him it was all I needed, but this affair left a bad taste in my mouth.  It would, after all, have been an easy thing for HuffPo to reveal Karr’s lie by commenting on his "Shill Watch" post on HuffPo itself, though of course that would have required that they publicly own up to blocking his comments themselves.

The bad taste got worse less than a month later when, on March 31, HuffPo announced “new blogging guidelines.”  As described on their website:

In an effort to be as transparent with our readers as possible, we require HuffPost bloggers to disclose any financial conflicts of interest related to the issue they are writing about.  If a blogger receives payment or income from a company, organization, group, or individual with a financial stake in the issue he/she is weighing in on, that information must be disclosed at the bottom of the applicable blog post.

For those who have opened the hyperlinks provided above, these words will sound familiar.  In fact, they sound exactly like what Karr was demanding. As he wrote in his Media Citizen blog:

I respect Huffington Post for building a home for many of us who seek an alternative to the mainstream mouthpieces that dominate news and commentary.  But they do not, unfortunately, require the kind of disclaimer I’d like to see regarding a new crop of contributors who are using the site to push corporate agendas.  I’m hoping that will change soon.  (Emphasis added.)  

Apart from the appearance of an inordinate amount of influence that Free Press has at the Huffington Post, there are many things wrong with this guideline, the most obvious being the way it lumps together people who work for organizations as diverse as law firms, corporations, PR firms, and nonprofit organizations, and implies moreover that bloggers’ opinions amount to “conflicts of interest” wherever they derive any income from entities that have a “financial interest” in the subject being blogged.  It also has the (deliberate?) effect of letting people whose contributors have an “ideological interest,” like Karr and the Free Press funders, off the disclaimer hook altogether.

If, as appears to be the case, HuffPo’s new disclaimer guidelines are a consequence, in whole or in part, of lobbying by Free Press, about whose funding we know next to nothing, the irony is almost too rich for human consumption.

But for the Huffington Post, this is not the worst of it.  Despite its left-leaning editorial slant, one can see in HuffPo the potential for dialogue.  It’s inherent in the openness of the site itself, and it’s implied by Arianna Huffington’s history and in her published views.  But at Free Press dialogue and debate are treated as bourgeois concepts, best abused or neglected, and if the Huffington Post allows them to influence their editorial policies they stand to lose not just a diverse readership but their credibility as well.

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The search giant Google is attracting criticism from those who see in that company’s business practices a threat to professional journalism, old and new.  The latest such comes in the form of a policy paper written by media attorney Kurt Wimmer, and published online by The Media Institute.

Honored this year by the Reporters Committee for Freedom of the Press, Wimmer has advised journalists and legislators in more than two dozen countries concerning new media laws, protection of journalists, and freedom of information.

The thrust of his paper is that, at a time when there is great concern for the future of the media, much of this concern is misplaced.  There’s no crisis in journalism per se, he argues, but rather a crisis in the monetization of journalistic content, a condition greatly exacerbated by the fact that one company dominates both search and online advertising.

Is anyone monetizing digital content?  Yes.  News and information continues to be monetized – at a rapidly increasing rate – by search engines, content aggregators, and others whose new, targeted advertising models have overtaken the spending that had supported journalism in the past.

Again, the dramatic new feature here is the split between content creation and content monetization – those who create the content are not those who are monetizing it.  Google, for example, had a record $23 billion in revenue during 2009, without producing a word of original content.  Google’s job is simply to monetize the content that others have created, and it has performed that job exceptionally well.  Today, more than 70 percent of the Web searches conducted in the United States (and up to 90 percent of those in Europe) flow through Google’s servers.  By its recent acquisition of AdMob, Google will control the vast majority of the mobile application advertising market as well.

Complaints about Google’s disruptive effect on professional journalism are not new, of course, and this is not the only active concern about Google’s business practices.  Other people have problems with the company’s abuse of copyrighted material (as in Viacom’s lawsuit against Google’s YouTube subsidiary), or with Google’s invasion of privacy, such as seen in the recent “Spy-Fi” affair.

What is new is the degree of scrutiny of Google’s practices by government antitrust officials.  As reported last month in a lengthy story in The New York Times, “the search giant’s decisions on such matters may soon be judged by higher authorities.”  As the Times reporter, Brad Stone, put it: “Almost a decade after Google promised that the creed ‘Don’t be evil’ would guide its activities, the federal government is examining Google’s acquisitions and actions as never before, looking for indications that the company’s market power may be anticompetitive in the worlds of Web search and online advertising.”

It’s become hard to know, in recent years, what the government may deem to be in restraint of trade, but if it happens, sometime in the near future, that it initiates an antitrust review of Google and you find yourself wondering why, read Wimmer’s piece and wonder no more.

Cross posted here on Huffington Post.

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Now that FCC Chairman Julius Genachowski has proposed what Broadcasting & Cable’s John Eggerton artfully calls a “Title II Lite” approach to broadband regulation, it’s a good time to take a second look (or maybe your first) at a recent paper by Robert Corn-Revere.

Bob wrote a Perspectives policy paper for The Media Institute titled “Defining Away the First Amendment,” which we released May 4.

This noted First Amendment attorney makes a crucial point – but a point that has not received adequate attention: “The FCC’s current ability to change the level of First Amendment protection for a medium simply by changing its regulatory definition is quite limited, if not nonexistent.”

Whoa, you mean there’s a First Amendment dimension to this reclassification debate?  You’d never know it by listening to the FCC, or to “net neutrality” supporters like Free Press.  Maybe that’s not surprising, since the First Amendment could very well prove an unwelcome stumbling block for Chairman Genachowski and his net-neutrality ilk.  Easier for them just to ignore it.

But, I would suggest to you, the First Amendment is far too important to ignore here.  In his issue paper, Bob Corn-Revere has shed some much-needed light on a pivotal concern that the FCC has tried to keep in the shadows.  Taking a “lite” approach to Title II reclassification doesn’t absolve the FCC of its constitutional obligations.  If anything, we need more “light” from Bob and others who are willing to hold the FCC accountable for the First Amendment ramifications of its regulatory agenda.

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Einstein’s Special Theory of Relativity postulates that it’s impossible for anything to go faster than the speed of light. More impossible still is the ability of Congress to honorably handle First Amendment issues.

The latest example of this dolorous state of affairs can be seen in the so-called DISCLOSE Act. Aimed at curbing what its Democratic sponsors claim are flaws in the Supreme Court’s campaign finance decision (Citizens United vs. FEC), the formal name of this legislation is the “Democracy Is Strengthened by Casting Light On Spending in Elections Act.” Seriously.

Not to put too fine a point on it, the difference between this Act’s intended impact and its stated goal is the difference between flapjacks and flapdoodle. In fact, the difference may be even greater than that. The Act is so dense and lengthy, who knows what’s in there? Could be anything. The only people who are going to know for sure are those communications lawyers who find gaping holes and contradictions in it--and don’t think for a second they won’t.

With this kind of opacity we can’t yet identify all of the Act’s “microflaws,” but its “macroflaws” are easily spotted: It burdens political speech in ways that are intended to discourage it, and it provides for the care and feeding of incumbents at the expense of challengers and the public at large.

We know the true intent of this legislation is to stifle political speech because the sponsor of the Senate bill, Charles Schumer, has admitted as much. As reported in Politico, though the legislation is “billed primarily as an effort to enable voters to determine who is behind ads attacking or supporting candidates, Senator Schumer...acknowledged that part of his goal is to limit the campaign spending newly legalized by the high court.”

“My view,” he said, “is that many CEOs of major organizations will air ads if they don’t have to disclose, but once they have to come up front and disclose, they will not do it…Anyone who wants to hide, will not do an ad after this legislation passes. And I think there are a lot of people who like to hide…so I think there will be many fewer of them.”

Apart from the DISCLOSE Act’s transparently fraudulent claim to a kind of “good government” motivation, the Act burdens business and nonprofit political speech by requiring so many on-air disclosures there would be little time left for a message of any kind, and by requiring CEOs of the sponsoring organizations and their major donors to do a kind of “I stand by this message” statement in the ad itself. The problem with this latter aspect is that this statement threatens to subject all such to retaliation and harassment by candidates, parties, and interest groups who disagree with whatever the message might be.

Another malevolent aspect of the Act, as analyzed by the Center for Competitive Politics (CCP), is that the legislation “would prohibit government contractors and U.S. subsidiaries of foreign companies from engaging in independent political expenditures.” This, from a group of politicians who, until the recent unpleasantness, were among the most fervent supporters of Acorn, an organization that attempted, in the name of “political inclusion,” to register the quick, the dead, and the never were.

A third macroflaw, and the one that shines a bright light on the sponsors’ true motives, is the provision that provides “candidates and parties the lowest advertising rate whenever an independent group airs ads in a given media market.” As the CCP observes, “This is a nakedly self-dealing attempt to punish independent groups for speaking out against Members of Congress.”

In a recent note, attorney Jan Baran, the esteemed election law expert at Wiley Rein, summarized this aspect of the DISCLOSE Act as follows: “The lowest unit rate provision manifests the politicians’ twofold strategy, which is as follows: first, do everything you can to burden and discourage public commentary about them; and if that doesn’t stop the speakers then give the political parties (which the politicians control) cheap TV and radio time at the expense of the broadcasters.”

“As you know,” he said, “the history of ‘reform’ is the history of politicians seeking to control political debate.”

The particulars of this legislation to one side, there is another woeful aspect of the campaign to reverse the Supreme Court’s Citizens United decision, and that is the lack of integrity in the debate.

One of the (very few) advantages in growing old is that you get to personally observe a bit of the sweep of history. In my case that history goes back to the Warren Court, and to the frequent conservative criticisms of that Court’s decisions.

Back in those days such criticism was said, by all the right people, to be an attack on the Constitution itself. But fast forward to the present time and what do we find? The New York Times publishing an editorial, in the wake of Citizens United, titled “The Court’s Blow to Democracy;” the president excoriating those Supreme Court justices who were in attendance at a State of the Union address; and the Senate sponsors of the DISCLOSE Act announcing their legislation on the front steps of the Supreme Court, ironically enough in the same week that the Court announced, for security reasons, that the front entrance will no longer be available to the public.

Time will tell whether any or all of the Act’s provisions, if enacted, will survive judicial scrutiny, but in the meantime, and in the interest of “truth in labeling,” the Act should be formally renamed. A more accurate title would be the Hyper-Partisan Old Claptrap Reveling In Temerity Act.

The acronym? You figure it out.

First posted on Broadcasting & Cable, May 6, 2010

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Many people have commented about Comedy Central's self-censorship of the "South Park" episode, but none so well as The New York Times' Ross Douthat.

Read it.  And think about it.

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Sorry to say, there are people in public life who, were hubris a lubricant, could forego ambulation and just glide on down the road.  Reed Hundt, the former chairman of the FCC, is one such person.

Hundt is back in the news these days because policies he clandestinely pursued while chairman are now thought by some (including Hundt himself) to be coming to fruition at the hands of his former FCC aides and confidantes, one of whom, Julius Genachowski, is now chairman.

This, and more, was revealed in a speech Hundt gave last month at Columbia University.  The subject of his address was the national broadband plan, then set to be released by the FCC just a week later, and what he characterized as a “confession or admission” of the role he played, years earlier, in using his office as chairman to systematically elevate broadband, at the expense of broadcasting, as the “common medium.”

To quote the great man himself: “The choice to favor the Internet over broadcasting was initially made in first-draft form by some of the people who are now running the FCC.”

One can only imagine how happy this revelation must have made the current FCC chairman since, if we’re to believe Hundt, not only was Genachowski a co-conspirator, so to speak, he was just a tagalong – the horse to Hundt’s Lady Godiva.

Lest you think for even a minute that the gentleman feels remorse about any of this, be advised: He doesn’t.  Quite the contrary, Hundt is pleased as punch with the way he handled things, amused even, and he wants you to see it the same way.  Rather like a school boy pulling a prank on the headmaster, Hundt sees his scheming not only as smart and justifiable but as positively cute in the way it confounded all but those few in the know.

How else to explain his characterization of his efforts to suppress broadcasting – by delaying, for instance, its transition to HDTV – as “a little naughty?”  Or his boast, re the ability of people to use the telephone network, for free, to connect to the Internet, as a case of the government “stealing the value from the telephone network and giving it to society?”

Not everyone sees the humor.  One who is particularly unamused is Gordon Smith, formerly Senator Smith, and now head of the National Association of Broadcasters. As reported in Broadcasting & Cable, Smith had this to say when asked what he thought of Hundt’s speech: “Frankly, I was rather offended, as a former member of the Senate Commerce Committee, that his secret musings were never shared with the elected representatives of the American people.”

Actually, Hundt’s Columbia performance isn’t the first time he’s spoken (what shall we call it?) “candidly.”  Years earlier there was the book, You Say You Want a Revolution, that he wrote not long after leaving the FCC.

Sandwiched between characterizations of some of his fellow commissioners as the “Gang of Three,” and innumerable accounts of the commercial rabble with whom he was obliged to spend time, Hundt wrote some things that are of a piece with his Columbia speech.

One of these describes a meeting he had in 1995 with Bill Gates. Hundt writes:

We had come to appeal to Gates’ self-interest.  As everyone on the West Coast knew, computing was heading directly toward communications....  With Gates as commander-in-chief, the entrepreneurs could win a lobbying war even against the powerful broadcasters....

I wanted Gates to go after the spectrum, because the auction was such a pure and sensible goal.  Later, depending on how the meeting went, we would ask for his help in connecting every classroom to the information highway....

If those who bought the spectrum at an open auction could ignore the networks’ deal with Congress and abandon high-definition television, they could transmit digital information to PCs....

Gates rocked in his chair.  His eyes magnified by his glasses, he stared at me, and asked urgently, "Does anyone else know about this?"

Elsewhere in the book, Hundt describes his attendance at a meeting hosted by the Gores (Tipper and Al), also in 1995, on the topic of Families and the Media:  

Then the President and Vice President each said they would support the children’s television initiative.  I had become part of the Administration’s political agenda – perhaps the first time in history that FCC issues were in the center ring of the political circus.  Al singled me out in the crowd.  I stood up.  The auditorium applauded.  The event made the national news.  It was intoxicating; it was much more important to be there in Nashville than at, say, an NAB convention.

Many people would agree that the Internet already is, or will become, the “common medium.”  And in an age when Saul Alinsky is held up as a role model, and the ends justify the means, views and acts like Hundt’s will almost certainly escape widespread censure.  But there’s this one small problem with the government picking the industrial winners and losers: What happens if they’re wrong?

Of course we know that governmental estimates and projections are never wrong.  But imagine that sometime in the future it happens.  Wouldn’t that be something?  Because, you know, in that case the government would not only have distorted the marketplace, it might have created problems it hadn’t even considered.

As it happens, there’s a claim in Hundt’s book that hints of this very problem.  In the same chapter in which he wrote of his meeting with Bill Gates, Hundt claimed that “big-screen televisions would cost so much that less than one percent of Americans would buy them.”

Imagine our surprise, then, when we check now with people at the Consumer Electronics Association, and are told that, in 2010, almost half (about 47 percent) of all TV sets sold are big screen.  Could this mean, Hundt’s furtive schemes notwithstanding, that the Internet won’t be the only common medium?  Go figure.

Cross posted at Huffington Post, April 21, 2010.

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From the Pew Research Center/Project for Excellence in Journalism comes the welcome report that newspaper editors and TV news directors are not eager to be, or to be seen as being, wards of the state.  This wholesome sentiment will not come as a surprise to most people, but it has to be disconcerting to the “media reform” crowd, which has been clamoring for direct government subsidies or tax breaks for the news media.

According to the study, 75 percent of the respondents, drawn from the ranks of members of ASNE and RTDNA, had “serious reservations” about direct subsidies from the government, and approximately half had such concerns about tax credits for news organizations.  (Note: These figures do not indicate how many of the respondents had “reservations,” only those who had “serious reservations.”)

It’s in the matter of non-governmental support, of the sort that issues from “interest groups” or nonprofit organizations, that the picture becomes a little murky.  According to the report, a whopping 78 percent of the respondents had serious concerns about accepting donations from “interest groups that engage in advocacy of some kind,” while a little over half expressed either serious or “some” reservations about funds issuing from nonprofit foundations.

Buts what about those groups, like the investigative news organization ProPublica, that are funded and led by people with extensive, and clearly defined, political profiles?  Is ProPublica an advocacy group or just a nonprofit news group?  The question takes on a practical significance in light of the Pulitzer recently awarded to ProPublica and The New York Times for their collaboration on a piece published in the New York Times Magazine.

As reported here, the founder, chairman, and principal financial backer of ProPublica is billionaire Herbert Sandler.  Since selling his interest in the bank (Golden West Financial) through which he made his fortune, Herbert and his wife, Marion, have become big-time philanthropists, with substantial sums going to “progressive” organizations like the Center for American Progress and Acorn.

Along the way the Sandlers acquired an interest in bankrolling a news organization that would create “journalism in the public interest,” as ProPublica calls itself, and hired Paul Steiger, then the managing editor of the Wall Street Journal, to act as editor-in-chief.

As reported in The New York Times, Steiger, who was then nearing the WSJ’s mandatory retirement age, didn’t know the Sandlers well but regarded them as “civic-minded people who were kind of partial to lefty or progressive causes.”

From its inception in 2008, ProPublica has proclaimed its independence and impartiality — a claim that is undermined by its avowed goal of producing journalism that “shines a light on exploitation of the weak by the strong,” and by the looming presence of Mr. Sandler who, rather than donate his money as a lump sum and walk away, installed himself as chairman and is parceling out his contributions over time.

At a recent conference of the American Bar Association, the general manager of ProPublica who, like Mr. Steiger, was formerly with the Wall Street Journal, defended the organization against criticism of Mr. Sandler’s role by suggesting that ProPublica, like the WSJ, is capable of producing journalism that is independent of the political views of management.  Unfortunately, this is an inapt analogy.  In fact it’s worse than that — it positively undermines the argument it’s meant to buttress.

This, of course, because the reason that the Wall Street Journal, or any commercial news organization, can produce news stories that are not a reflection of the political views of management is because they, like all for-profit organizations, operate on the principle of maximizing returns to the shareholders, rather than as a forum for the expression of management’s political or ideological views.

But contrast this dynamic with the very different operating principle of ProPublica, or any nonprofit enterprise.  As Slate’s Jack Shafer asked at ProPublica’s launch, “What do the Sandlers want for their millions? ... How happy will they be if ProPublica gores their sacred Democratic cows?  Or takes the ‘wrong’ position on their pet projects: health, the environment, and civil liberties?”

In fairness, most of the reports produced by ProPublica to date do not suggest an organization that is marching in lockstep with the progressive agenda.  For the most part they are ideologically value free.  But that’s only half the story.  The real issue with a group like ProPublica is not the kind of issues it does cover but the kind it doesn’t.  As Jack Shafer asked, what kind of investigative pieces will ProPublica do — not counting the rare expose that proves the rule — that discomfit progressives?  That will be the true test of its independence from its benefactor, and of its suitability as a partnering organization with mainstream news organizations.

In the meantime, close your eyes and try to imagine the kind of reception that would have come to Paul Steiger and ProPublica if, instead of Mr. Sandler, the group's founder, chairman, and bankroller had been someone who, politically, was Mr. Sandler's polar opposite — someone who had supported conservative or libertarian causes and organizations.  How do you think that would have gone down with the J-schools, journalism reviews, and grant-giving foundations?

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The D.C. Circuit Court's decision, while obviously correct, will not slake the thirst of anyone looking for intellectual arguments for or against the FCC's proposed regulation of the ISPs' network-management practices. Because the court ruled that the FCC lacked the "ancillary" authority it asserted, the body of the decision amounts to little more than a refutation of the respondents' argument that earlier Supreme Court decisions provided precedent for the FCC's claims.

The "legalistic" nature of this decision aside, there is something important here. It is widely surmised (and feared) that, thus rebuffed, the FCC will attempt to get to its desired result – network neutrality, as it's called – by attempting to regulate ISPs, like phone companies, under Title II of the Communications Act.

But look what's happening here. On the basis of claims of abuse so slim they're very nearly invisible, the FCC has proposed to expand and codify that agency's "Internet principles" in a way that guarantees its regulatory oversight of the freest, most democratic, and fastest-growing communications medium in the country. And for what? Because of fears that Internet providers might look for ways to insulate everybody else from the negative consequences of the actions of a relative handful of bandwidth hogs?

One of the intervenors in this case – Free Press, whose sole reason for being is the subjugation of the commercial media and communications companies to the yoke of government – coined the phrase "Net Neutrality: The First Amendment of the Internet." The reality, as someone put it, is that codified net neutrality is more nearly "The Fairness Doctrine of the Internet."

For now, nobody knows for sure what will happen next – whether the FCC, or Congress, will push ahead in the conviction that this too is an issue of such "transformative" importance the only thing that matters is getting it done. But in this, as in so many things, the wiser course would be to rethink the matter entirely. It rarely happens that government acts more efficiently than the marketplace, and net neutrality is almost certainly no exception to that rule.